An Australian Bill of Rights would do more harm than good

THE battle lines over an Australian bill of rights are being drawn with a polarisation that will disturb the Rudd Government, which made the tactical decision to defer the republic campaign and give priority to the rights debate.

What do former Australian chief of army Peter Cosgrove, former governor-general Ninian Stephen and original chairwoman of the Northern Territory Emergency Task Force Sue Gordon have in common? They are the Australians who launched, wrote the foreword and the afterword to the new book Don't Leave Us with the Bill, the case against the bill of rights.

In his launch speech this week Cosgrove said he believed the issue was "possibly more important" than the republic. He warned that the Australian public was unimpressed with "me-tooism", being lectured that it must have a bill of rights when such laws "have made not a jot of difference to crushing inequities" in other societies.

"Enduring laws ought not to be a fashion statement," Cosgrove said on Monday when he declared: "Don't leave us with the bill."


Pledged opponents in this book are: Queensland Chief Justice Paul de Jersey; former High Court judge Ian Callinan; former solicitor-general David Bennett; former NSW judge and past president of the Australian Bar Association Ken Handley; historians John Hirst and Geoffrey Blainey; former chief of operations in Iraq Jim Molan; West Australian Attorney-General Christian Porter; University of Sydney professor of law Helen Irving; former Keating minister Gary Johns; the leader of the Catholic Church in Australia, George Pell; deputy president of the Executive Council of Australian Jewry John Levi; Australian Christian Lobby head Jim Wallace; former PM John Howard; and shadow attorney-general George Brandis, among others.

The message is that Australia's most prominent opponent of the bill of rights, former NSW Labor premier, Bob Carr, has strong support on both his flanks. The new book from the Menzies Research Centre, co-edited by its executive director Julian Lesser and lawyer Ryan Haddrick, penetrates the fog of polemic around this issue, created by a self-interested legal lobby and human rights industry.

The arguments against a bill of rights are powerful, intellectual and populist. The Rudd Government will commit an act of folly by ignoring them. There is a chance that Frank Brennan, chairman of the consultation panel on the rights issue, may offer the Government an exit strategy.

But if Attorney-General Robert McClelland is allowed to proceed Kevin Rudd will find himself engulfed in a culture war over power, rights and values, with unusual dividing lines.

Virtually every group is split internally, yet there will be strong opposition from the Liberal and National parties, the churches, which are frontline targets, indigenous leaders aware that "rights" arguments are the main barrier to reform in Aboriginal communities, law enforcement authorities, sections of the Labor Party hostile to this undemocratic manoeuvre, and citizens who see this is a power transfer from the people and parliaments to judges.

There are three themes in the Menzies Centre book: the bill of rights is not the best way for society to protect rights; it constitutes an unwise shift in Australia's governing institutions; and, most significantly, the campaign is not primarily about rights but is best understood as an ideological movement that recruits the human rights cause to win social and economic policy changes that would never attract majority support from the public.

Hirst is impolite enough to say there is a "widespread belief" in Australia "that the disadvantaged and minorities have been given far too much attention" and a bill of rights will give them even more. He says leaders such as Howard and Mark Latham were wary of this: witness Howard's "For all of us" 1996 slogan and Latham's warning against "subdividing society into a collection of single identities based on race, gender and sexuality".

This goes to a core point: a bill of rights may assist a few individuals but will diminish society.

Bennett argues the defect lies in thetension between the general rule and the exception: witness the Catholic Church's exemption from discrimination on religious grounds because it wants clergy and teachers to be Catholics. This is "justifiable discrimination", but such decisions should rest with politicians, not judges. How does one balance the right to life with the right to self-defence? How does one balance the right to avoid detention without conviction with the view of every Australian government that on rare occasions detention without conviction is essential for public security?

Defying the power grab by the legal profession, Callinan, de Jersey and Handley insist that non-elected judges should not be asked to resolve such social and economic issues.

Claims they do this now are false. The bill of rights envisages a new role for judges that, as Callinan says, departs from Australian practice.

"Under a human rights act, although it may take a while, the court eventually becomes the master," Handley says.

Howard says that in 2004 his government changed the Marriage Act to define marriage as a union between a man and a woman. But in Canada, as he explains, the courts purport to make such decisions, and this required override action by Canada's parliament.

The most stunning insight into this entire debate, however, is Brennan's recent and separate attack on Victoria's rights charter, supposedly the model for a national bill. Brennan's conclusion is that Victoria's law has failed its first test: the need to uphold freedom of conscience.

Brennan's concern was clause 8(1)(b) of the Abortion Law Reform Bill that, in defiance of Australian Medical Association ethics, overrode a physician's freedom of conscience and compelled a doctor who had a conscience objection on abortion to find and recommend to the patient a doctor willing to perform the operation. As Brennan said, the law requires "compulsory referral by a conscientious objector" or, in shorthand, leave your morals at the surgery door.

Brennan's conclusion is that Victoria's rights charter "failed spectacularly" to defend a core human right when it conflicted with the progressive-Left political agenda on abortion law and bioethics. He nails the issue: Victoria's law is not primarily about human rights. It is "a device for the delivery of a soft-Left sectarian agenda" and it will be discarded whenever "the rights articulated do not comply with that agenda".

In short, the rights debate is an ideological instrument for causes the Left knows the public may not embrace. Brennan sees it and said it. Presumably, this must influence his report to McClelland.

It goes to the real issue in the national debate: the advocates want certain rights to be advanced and other rights to be cut back.

It is time to ask what this means for society if extra rights are invested in the causes surrounding feminism, asylum seekers, gays, national security suspects, law breakers, secularism and Aboriginal guarantees as anti-intervention devices.

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Posted by John Ray. For a daily critique of Leftist activities, see DISSECTING LEFTISM. To keep up with attacks on free speech see TONGUE-TIED. Also, don't forget your daily roundup of pro-environment but anti-Greenie news and commentary at GREENIE WATCH . Email me (John Ray) here